Thursday, July 30, 2015

Criticisms of panel studying assisted suicide unfounded.

This article was published by Advocate Daily.

Canadian government consultation on legislative options for Assisted Dying begins.

Hugh Scher
Concerns of bias in a panel appointed to lead efforts in dealing with the Supreme Court of Canada’s historic lifting of the prohibition against assisted suicide are unfounded, given that the fundamental issue of whether the practice should be decriminalized has already been decided, says Toronto health and human rights lawyer Hugh Scher.

The panel, appointed by the Harper government, will be led by Dr. Harvey Max Chochinov, an international leader in palliative care and the study of dignity at the end of life. His expertise and qualifications are unparalleled anywhere in the world, says Scher.

Dr. Harvey Chochinov
His fellow panellists are disability rights expert Catherine Frazee, professor emeritus at Ryerson University and former Chief Commissioner of the Ontario Human Rights Commission, and Benoit Pelletier, an expert in constitutional law at the University of Ottawa and former Quebec cabinet minister, reports the National Post.

Both Chochinov and Frazee were expert witnesses called by the Canadian government to give evidence and reports in the Carter assisted suicide case that eventually made its way to the Supreme Court. A review of the decisions by all levels of court in the Carter case praise the expertise and evidence led by these two witnesses, which was virtually unchallenged at trial.

Catherine Frazee
The panel will conduct online consultations with Canadians and key stakeholders on possible options to the high court’s ruling and report back to the government by late fall, likely after the October federal election, says the report.

The group will focus on which forms of assisted dying should be permitted — assisted suicide, where a doctor prescribes a lethal dose of a drug the patient takes herself; voluntary euthanasia, or death by lethal injection — eligibility criteria and safeguards to protect a doctor’s “freedom of conscience” not to participate against his or her moral or religious objections, reports the Post. Whether assisted suicide is health care or medical treatment, or whether it should be separated from medical treatment, is a serious issue that will need to be canvassed by the panel in light of feedback from the public and expert stakeholders.

Benoit Pelletier
Scher, a well-known voice in the end-of-life care debate, has acted as counsel to The Euthanasia Prevention Coalition in several high-profile cases including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.
“The formation of the panel is a responsible and sensible approach in terms of giving the government the opportunity to hear from Canadians, stakeholders and experts from all sides as to the various difficulties and challenges that are sure to be encountered through any system that seeks to decriminalize assisted suicide and impose a level of safeguards to enforce the ruling of the Supreme Court of Canada,” Scher tells
“In that vein, I would say that this panel displays a level of expertise that is of the highest quality in the country. Dr. Harvey Chochinov is known the world over as one of the leaders in palliative care and the study of dignity at the end of life and he’s generally regarded as one of the world’s leading experts on that fundamental topic. Catherine Frazee is a leader in the disability rights movement and has been for years. Her depth of knowledge and understanding of these issues spans decades.”
Constitutional considerations, says Scher, will be extremely important as the panel begins its work.
“Given the medical, human rights and constitutional background that each of these panel members collaboratively bring to the table, I believe that they are extraordinary choices to facilitate a discussion and dialogue with Canadians on all sides of this issue relative to the considerations that should go into the application of the Supreme Court’s ruling in the formation of a law that seeks to give effect to that ruling,” he says. 
“One must remember that the issue of the decriminalization of assisted suicide has been determined by the Supreme Court, so these panel members are not being called upon to advocate for one position or another on the issue. The issue has been determined. What’s at issue now is how to give effect to and implement this ruling in a way that accords with both the terms of the ruling and the concerns of stakeholders on all sides.”
Scher calls any attempts to impugn the panelists’ credibility “significantly misplaced.”

They should be seen as advisors, not decision-makers, he says.

“Their role is to facilitate the receipt of cross-country feedback and discussion relative to what should be implemented in order to give effect to the Supreme Court ruling, including with respect to such matters as ensuring the voluntariness, consent and capacity of people seeking an assisted suicide,” says Scher. 
“The panel will also take into consideration the need to protect against the risks of abuse, particularly for vulnerable communities and members of society including, most notably, people with disabilities and seniors. They will have to ensure that the mechanisms put into place to give effect to Supreme Court ruling are in keeping with the utmost considerations of dignity, equality and respect for the individual, the common good and the public interest.”
While it’s unclear at this time which government may ultimately be receiving the panel’s recommendations, “any government of any political stripe would benefit from the advice and recommendations of a panel of this level of expertise and prominence with their depth of knowledge, insight and facilitation skills,” says Scher.
“They are there as a facilitating messenger in order to advise. They are not there to make any particular decisions, especially on the fundamental issue of decriminalization of assisted suicide, which the Supreme Court itself has already determined.”
In February, the Supreme Court struck down the Criminal Code prohibitions that ban physician-assisted suicide in certain express circumstances and gave Parliament one year to legislate new rules to give effect to the ruling.


Sean L. Tobin said...

I am not overwhelmed by the appointment of a panel to study assisted suicide. The person deciding to make the choice of committing suicide or facing the ongoing challenge of their affliction must reconcile their ultimate decision with their personal system of beliefs. What I am terribly afraid of, and I suspect a lot of people in the older age group like myself, are also terribly afraid of is the "possibility" or should I say "opportunity" of Governments or Medical Panels to introduce a subtle form of euthanasia as a means of cutting down on health care costs and beds in hospitals and nursing homes. As we get older, many of us have children who, unlike past generations, are too busy being busy and no longer want to be saddled with the responsibility of taking care of their elders. To make matters easier for their consciences, they don't want to have to make the decision to terminate. They would prefer an anonymous body have that ability. As difficult as it will be, somehow a solution has to be found so that elders suffering from Alzheimer, Parkinson or Cancer diseases and have no idea where they are or even who their loved ones are anymore, are absolutely protected from greed, neglect or abandonment.

Anonymous said...

Hugh Sher's article clearly identifies the situation in which we now find ourselves. Sadly, the Supreme Court has decriminalized assisted suicide and qualifies it to be utilized 'in extreme situations' only. Clearly stated boundaries must be set in the language of our legal system. Unfortunately, often "legalese" language is used and can subject to challenges depending on the interpretation. It has been left up to the public to tweak the existing 'law' so that it is manageable. Again, sadly, such a sensitive, conscionable issue is to be decided within a very short period of time! While I am pleased with the selection of panel members, I would not want to be in their position to be the only advisory available. Surely they will call on the public. It needs to be thoroughly consulted, not just surveyed; and lawyers need to be available in order that the process protects those of us who are or will be considered vulnerable. Our future as valued human beings is at stake and I am not certain that all generations are aware of the implications of this Governmental study. I trust that Pallitive Care Doctors and such personnel will outline what is already available to ease suffering and pain even if it is merely anticipated. A thought...the great Stephen Hawking as a youth might have chosen physician assisted suicide, since it was the medical profession who gave a terminal diagnosis; however, technology has allowed him to remain alive and carry out his immeasurable contributions to the scientific realm. what a loss to society if he were to have completed assisted suicide. Every human being deserves to be offered hope...we already know that we are all terminal. With today's medical advancements, a human being can endure the experience of his or her life ending no matter the pain experience. There are powerful effective medications to which the medical profession has access. The public needs to be educated and more Palliative Care ought to be available as an integral aspect of the Medical system for which Canada is famous.